Working: Chain of salons on offense in OT class action

Chain of salons on offense in overtime class action

Published 5:30 am, Thursday, August 26, 2004

Special Web sites.Veiled threats. Terminated employees. They sound like the elements of a typical ugly union organizing drive, with both sides screaming foul play. But this time they are part of an overtime lawsuit.

Celia Johnson sued Houston-based TGF Precision Haircutters in September, claiming she and her co-workers were forced to work off the clock.

The employees say they aren't paid for the 15 minutes they must report before their shift officially begins, they must clock out if business is slow or if they take a break to smoke a cigarette, and they're also not paid for the time they spend attending mandatory meetings.

If the allegations are proved true, as many as 4,500 hairdressers and receptionists may be able to collect up to three years' back wages.

The allegations or potential liability aren't that unusual, as overtime lawsuits go. What is odd is that TGF appears to be leading a campaign to discourage its workers from joining the lawsuit.

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The chain of nearly 200 salons launched a Web site, www.brelianlawsuitfacts.com, that warns employees to "be sure to read the fine print" before signing up, including the potential for high legal bills.

The site also features answers to several "troubling questions," such as:

"Q. I love TGF, and I hate to see what lawyers are doing to the company. Can I discourage anyone from joining in this lawsuit?

"A. Yes. You as a current or former employee have the right of free speech. If you do not like what is going on, you are free to tell that to others; but the company is not suggesting that you do so."

But that's not all.

Former TGF supervisor Elvira Arriaga said the employees who signed on to the overtime lawsuit were identified at each management meeting, and supervisors and managers were encouraged to keep a close eye on them so they could be dismissed for disciplinary reasons.

Arriaga, who earned about $33,000 a year managing as many as 40 TGF locations, recalled a meeting this year in which a regional supervisor said a League City employee had joined the lawsuit and threatened to fire her.

The 58-year-old said she grew frightened.

"You just think twice," said Arriaga, who was terminated last week, shortly after filing an affidavit detailing pressure to discipline employees. In addition to a retaliation lawsuit, she has filed an age discrimination charge with the U.S. Equal Employment Opportunity Commission.

Request for secrecy

Because of the alleged intimidation,
David George
, an employment lawyer with Edwards & George who is representing the employees, has asked U.S. District Judge
Ewing Werlein
Jr. to allow employees to join the lawsuit under seal so TGF won't know their identity.

Michael Jay Kuper and Raymond Kalmans are representing TGF and its parent company, Brelian. Neither returned calls for comment.

Brelian President Frank Tavakoli said in an affidavit this month that he never told anyone to retaliate against employees who join the lawsuit or to create a paper trail of discipline.

Unusual raffle

But then, there's the raffle.

Shortly after the original lawsuit was filed, employees were asked to fill out a questionnaire that asked them to detail the number of hours they typically work and whether they've ever been asked to work off the clock.

The catch was that employees had to swear the answers were true "under penalties of perjury," said George, which makes it a sworn statement that's admissible in federal court.

The reward for filling it out? A chance to win a trip to Las Vegas.

"I do a lot of federal court declarations," George said with a laugh. "But I very rarely include a raffle, too."

TGF said it ended the questionnaire after U.S. Magistrate Judge Frances Stacy held a hearing on the matter. Stacy ended up not ruling.

Opt-in incentive

So why the big fuss?

The only way current and former employees can receive back wages — unless, of course, they want to hire their own lawyer or file a complaint with the Labor Department — is to join the lawsuit.

So far, 134 employees and former employees have joined the case, George said.

The defendant in an overtime lawsuit has an incentive to make it hard for the potential class members, because to participate, they have to to opt in, said Rex Burch, a wage-and-hour lawyer with Bruckner & Burch in Houston. He's not involved in the TGF lawsuit.

"I've had employers say that the lawsuit will shut down the company and put everyone out of a job," Burch said. "I've had employers say you'll end up with nothing, and the only person who will end up with anything is the lawyer."

Other types of class-action employment cases, gender and race discrimination, for example, automatically include all affected employees, and individuals must opt out if they don't want to participate.

George estimates that the average TGF employee earns $8 an hour and that they work an average of five hours a week off the clock. At time and a half, that works out to about $3,000 a year per employee, which can be doubled under the wage-and-hour law.

But he doesn't know the extent of back wages because employees must join the case before the real investigations begin. Employees have until Oct. 19 to join.